Speaking Tuesday evening at an event hosted by BuzzFeed in Washington, D.C., Senator Claire McCaskill (D-Mo.) said that she and Senator Kirstin Gillibrand (D-N.Y.) have an “honest disagreement” about how sexual assault in the military should be prosecuted.
Both senators have received top ratings from NARAL Pro-Choice America, Planned Parenthood, NOW, and EMILY’s List, so to see them on opposite sides of an issue as prominent as sexual assault in the military may seem surprising.
Senator McCaskill, who is a former prosecutor herself, has argued in favor of keeping commanders involved in the prosecution process of sexual assault cases, a move favored by most military commanders who say that removing them from their authority in such cases would “undermine their ability to lead.” Senator Gillibrand, on the other hand, has proposed allowing independent military prosecutors to decide which cases move forward in military court.
According to McCaskill, taking commanders out of the process absolves them of any responsibility for maintaining a safe and healthy environment among their unit while keeping them involved would create an internal respect for the legal process that wouldn’t necessarily be there if outside prosecutors took charge of the case. Furthermore, she argues, commanders will be better able to prevent incidents of retaliation against those who report sexual assault if they retain authority over such cases.
But as Gillibrand notes, “Frankly, they've failed up until now to keep the command climate free of assault, rape and retaliation.” And it’s hard to argue when 62% of those who reported an instance of sexual assault were retaliated against after they did so.
McCaskill was quick to clarify on Tuesday that this was not a “victims versus uniforms” dichotomy and that she did not intend to “coddle the Pentagon.” In fact the senator has offered up a host of provisions that would hold commanders more strictly accountable, including making it a punishable offense to retaliate against someone who has reported an incident of sexual assault and requiring commanders to provide written justification if they wish to modify the sentence of someone who’s been found guilty.
And while such provisions would certainly be welcome changes, the notion of continuing to involve commanders who have already failed to establish an environment of respect in their unit — not to mention keep members of their units safe — still raises real red flags.
First, commanders in assault cases are anything but objective when such incidents reflect poorly on their own ability to lead their unit in a way that fosters camaraderie and respect. Furthermore, some commanders may approach the situation with broader prejudices that necessarily lead them to a certain conclusion, or as Gillibrand notes, “They may or may not want women in the armed forces” in the first place. Nor, it is important to point out, are commanders trained legal experts in what constitutes sexual assault or in the types of evidence are required to bring a case to court.
Gillibrand elaborates, “Commanders may have different training, different perspectives…They may not understand what sexual assault is, or what constitutes rape. They may not agree, what is a rape or not a rape. But that shouldn't be their judgment. It should be an objective, trained prosecutor who makes the decision about whether or not there is evidence to prosecute these crimes. That hopefully will instill more confidence in the system, that justice can be possible."
And there Gillibrand hits the nail on the head. In addition to their personal prejudices and lack of professional objectivity or any legal training, having to receive sign-off from your commander for your case to move forward necessarily discourages some people from reporting those cases in the first place. That factor — intimidation, fear of personal or professional reprisal — is why there were 26,000 estimated cases of assault last year and only 3,000 were reported. The absence of confidence in the justice system means the system is broken before it can even begin to work, even if we set aside, for a moment, the problems noted above. And that fact is well known to both perpetrators and victims, meaning there is neither deterrence for those who would commit these crimes, nor justice for their victims.
That broken system has consequences that are not only tragedies for the victims and a stain on the pride of our armed forces, but are real detriments to the health of our military when qualified, determined women leave the military or decline to join in the first place — a problem that was made poignantly clear when Senator John McCain, a proud Vietnam veteran and the son and grandson of two four-star admirals, told the top U.S. military chiefs that “a woman came to me and said her daughter wanted to join the military and could I give my unqualified support for her doing so. I could not.”
Few have spoken out as passionately as Senator McCaskill on this problem and she is undoubtedly working hard to find the best solution for both the victims and the health of our fighting forces. But many, including myself, remain unconvinced that continuing to involve commanders in the prosecution of incidents within their unit doesn’t leave one of the largest obstacles to justice for these victims tragically intact.